Site Search Navigation

Site Navigation

Site Mobile Navigation

Bin Laden’s Driver

By Andrew Rosenthal October 16, 2012 6:16 pmOctober 16, 2012 6:16 pm

The story of Salim Hamdan, a Yemeni man who worked as a driver for Osama bin Laden and today won a significant court battle, is the story of how little President George W. Bush cared about the rule of law.

Captured in Afghanistan in 2001, detained in that country and then transferred to Guantanamo Bay, he was initially charged with conspiracy by the military commissions that President George W. Bush created with an executive order shortly after the 9/11 attacks. He should have been charged in a federal court, but Mr. Bush thought that system wasn’t tough enough for Guantanamo Bay detainees.

U.S. District Judge James Robertson halted the trial, finding in 2004 that the commissions violated the Geneva Conventions and military law. The Bush administration tried to fight that ruling, but lost its Supreme Court case in 2006.
Once again, Mr. Bush and Congress ignored the obvious solution – trials in federal court – and passed a law creating new tribunals and new “war crimes” with which to charge people like Mr. Hamdan. One of those was “material support” for a terrorist organization (like driving Osama bin Laden around.)

In 2008, Mr. Hamdan was cleared on conspiracy charges, but convicted of “material support.” He has since been released and has gone home to Yemen.

But a federal judge, Brett Kavanaugh, today overturned the conviction because the crime of “material support” had not existed as a war crime when Mr. Hamdan was arrested, charged, and recharged. Judge Kavanaugh wrote:

Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

It’s not clear how big an impact this ruling will have, because prosecutors have since charged other inmates with more crimes beyond “material support.” But it stands as a rebuff to the military tribunal system, which exists to make politicians feel like they’re tough but is not actually a good way to try or convict terrorists.